India needs to build upon the rights-based approach that informed the country’s adoption of universa
In the debates on India’s contemporary history, the meaning and significance of 1947 and of the framing of the Constitution have always been contested. Did the Constitution mark a moment of discontinuity with the colonial past, and a desire to transform Indian political and social structures? Or was it simply a transfer of political power and a change of rulers, leaving underlying institutional arrangements intact? Supporters of the second view marshal a formidable array of arguments to support their case that the Constitution was simply a continuation of what existed before, with a few cosmetic changes. They point out that two-thirds of the Constitution replicates the 1935 Government of India Act, that key enablers of colonial executive dominance such as the ordinance-making power and Emergency powers were carried over, and that the Constitution expressly endorsed existing colonial laws. This interpretation has sometimes been validated as well by the Supreme Court, which once pointed
Central to this argument is the issue of suffrage. It is argued that in the thirty years before Independence, there had been a slow and incremental development of representative institutions in India. Waymarked by the 1919 and 1935 Government of India Acts, which established a limited franchise and allowed for the functioning of provincial legislative assemblies, the argument — again, in the words of the Supreme Court — is that the “new governmental set-up was [only] the final step in the process of evolution towards self-government.”
This is not merely an academic debate. As the civil liberties lawyer K.G. Kannabiran pointed out, “Our political struggle retained with total composure the entire colonial legal system which had been effectively used against the freedom struggle”. Indeed, elements of this system have been upheld and endorsed by the courts, some quite recently. These include the laws of sedition, blasphemy and criminal defamation, Section 377 of the Indian Penal Code, a
In at least four distinct ways, universal suffrage in independent India marked a decisive break from its colonial past. First, arithmetically: the franchise granted by the British regime in the 1919 and 1935 Government of India Acts was highly restricted, and at the highest (in 1935) no more than 10% of Indians could vote. Second, structurally: voting in British India took place under the regime of separate electorates, divided along class and economic lines. Third, the character of the electorate: voting entitlements were based on property and formal literacy-based qualifications, which reproduced existing social and economic hierarchies, and excluded the very people whose interests were most in need of “representation”. Indeed, women’s entitlement to vote was often linked to the status of their husbands. And fourth, voting was a gift of the colonial government, which could be granted or taken away at its will. Suffrage was a privilege accorded to a few Indians, and not a right that a
There are recent signs that the courts have begun to understand this. In early 2017, in a very significant judgment involving the executive’s ordinance-making powers, the Supreme Court expressly departed from colonial precedents on the subject, and placed important limits upon the scope of presidential ordinances. Later in the year, when the court was hearing the dispute between the elected Delhi government and the Lieutenant-Governor (another colonial holdover), more than one counsel framed the issue in terms of the constitutional commitment to progressively deepening democracy. And indeed, many of the pending and upcoming cases in the Supreme Court’s docket involve questions of how much power the state can wield over individuals, what rights individuals have to decide for themselves how they will define their relationship with the state, and above all, how the constitutional “culture of justification” holds the state accountable for the uses and abuses of such power.
In hearing an